By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
This past June, the tribe filed suit in Broward Circuit Court claiming Cox, Wisher, and two other ex-employees defrauded the tribe out of more than $4 million. Among the suit's allegations are that the men skimmed money by surreptitiously installing software on gambling machines, using tribal credit cards, and embezzling cash to pay for a hotel in Nicaragua and to launch an offshore Internet gambling site. A similar federal criminal case is being tried this week in Fort Lauderdale.
The Seminole purse strings are controlled by both the tribal council and the tribal corporation, two entities that share some members but not necessarily the same goals. As the tribal corporation's business involvement with the non-Indian public has grown, so have the number of lawsuits filed against the tribe involving rights of the disabled, sexual harassment, personal injuries, and construction disputes. The tribe has invoked its sovereign immunity as a defense in these cases; most end either because judges dismiss them or plaintiffs run out of money and patience.
Dan Sasso, a Collier County-based attorney, sued the tribe in the early 1990s on behalf of Dimentional Trade Industries, whose owner claimed the tribe hadn't paid $31,000 for drywall installation. After the tribe invoked immunity as a defense, the case dragged on until the owner decided to drop it, Sasso recalls. "There's just not enough money to proceed," he explains. "[Clients are] going to hit old age before they can finish the process."
Tribal immunity is a principle of Indian law long upheld by many courts across the nation, according to Nell Jessup Newton, dean of the University of Connecticut Law School and one of the top Indian-law experts in the country. "Indian tribes are governments; it's as simple as that," she declares. "Congress can limit their power, which is what makes them different from state governments. It is a principle of Indian law that Congress could enact a law waiving sovereign immunity of tribes, and the judiciary has stated this in several opinions."
One unexpected critic of the Seminoles' immunity defense, however, is the former chairman. "[The tribal corporation] always runs and hides behind something called sovereignty for some damn reason," growls James Billie. "I don't know how long you can keep hiding like that. That's why they could never get business with people. When I come in, I honor my situations when I do business with people. When these other people get in, they hide behind sovereignty. But that's bullshit after a while."
Braun had no inkling of tribal immunity when he dove into the fish-farm venture. With the discovery of the farm's hidden failings in 1990, however, he became convinced that U.S. Fish had been defrauded. Thus, the firm had the right, he believed, to discontinue lease payments until these problems could be investigated and, if possible, resolved. In January 1991, U.S. Fish filed a claim with the Department of Interior's Board of Indian Appeals, asserting that the tribe and the BIA were guilty of misrepresentation because they had not disclosed the defects. In June of that year, the judge issued a decision that the BIA and tribe had the right to cancel the lease because of the missed payments. As to the defects, if they did exist, the judge wrote that the Board of Indian Appeals lacked jurisdiction and authority to award damages against the BIA or Indian tribes.
Braun was incensed that the appeals board didn't care that the BIA knew about the farm's flaws but chose to lease the operation anyway. "We had no choice but to go to court," Braun says, "so we hired a lawyer." The firm filed suit against the BIA and the Seminole Tribe on February 5, 1992, in Broward County Circuit Court; the case was transferred to federal court that June.
In late 1992, Braun contacted U.S. Sen. Connie Mack's office, which forwarded his concerns to the General Accounting Office, the investigative arm of Congress. That agency moved forward with a preliminary assessment of the U.S. Fish lease and BIA management.
Subsequently, Braun claims, an aide in Mack's office told him that if the tribe would agree to a new lease, the senator's office would arrange for more funding through the BIA to fix the problems at the fish farm.
Despite the fact that U.S. Fish had lost about $3 million, Braun believed that the farm could succeed and that it would be to everyone's benefit if it did. "I wrote a letter to the tribal [corporate board], believing that if I could talk with someone of some reason, of good integrity, that we could resolve this. I wanted the fish farm to work." The council granted an audience, which was attended by Braun, his partner Oster, and Tracy Tomlin, their attorney. Braun had intended to present a list of current and past employees who could verify the pre-existing defects at the fish farm. Braun claims that the tribe's attorney, Lerner, didn't allow him to speak. Lerner then told Tomlin that even if he won the case, he couldn't collect any money because the Seminoles would claim sovereign immunity, Braun says.
Lerner recalls otherwise, that Braun addressed the tribe and offered to drop the lawsuit if he was given a new lease. "They simply had no interest in doing business with a guy who filed a lawsuit against them," Lerner says.